Characteristics of english law

The United Kingdom is a unitary State, not a federation of States. Nevertheless, it does not have a single system of law within that State. There are separate systems operating in (i) England and Wales, (ii) Northern Ireland, and (iii) Scotland. Due to the closeness of the association since the twelfth century between England and Wales on the one hand and Northern Ireland on the other, these countries have similar legal systems. There are, however, differences between the law of Scotland, influenced by Roman law, and that of the remainder of the United Kingdom, although since the Union with Scotland Act, 1707, these differences are now less marked on broad issues.

Two important links uniting the system are: (a) Parliament at Westminster is the supreme authority throughout the United Kingdom; (b) The House of Lords is the final court of appeal.

English law is one of the great legal systems of the world, and a substantial proportion of it is ruled today by laws that came originally from this small island. What, then, are the characteristics of English law which give it this pre-eminence? The most important are these:

1. Continuous growth

English law is traceable to Anglo-Saxon times. The common law, i.e. judge made law, which forms the basis of English law, has endured for 900 years and has continuously adapted itself to changing social and economic needs.

Old rules of law remain law despite their age, unless expressly repealed. Thus in the case of Ashford v. Thornton (1818), an appeal against alleged murder, the appellor claimed and was granted the ancient Norman right of trial by battle. In point of fact the appellor's opponent refused to fight, and the right was abolished by statute in 1819.

The Treason Act, 1351, is still good law and may be invoked today despite its age.

Whereas Continental countries have been subject to continual invasions, revolutions, declarations of independence and the like, the geographical separation of England from the Continent, coupled with the Englishman's traditional respect for law, have tended to preserve the independent and uninterrupted growth of English law.

(b) Absence of codification

A legal code is a systematic collection of laws so arranged as to avoid inconsistency and overlapping. Codification was a feature of Roman law and was adopted by nearly all Continental countries, notably France, Germany, Austria, and Switzerland. The English common law was formed from the customs of the people. Under the Norman kings these unwritten laws achieved a fairly uniform legal system. Certain parts only of English law have today been codified, e.g. the Bills of Exchange Act, 1882, and the Sale of Goods Act, 1979, though the Law Commission is working towards a codification of criminal law and contract (Law Commissions Act, 1965)

с) Judicial character of the law

The early Norman judges were important figures appointed by the Crown whose justice they administered. The common law was largely 'judge-made' from the existing customary laws. It is from the records and reports of cases tried by the judges that we derive our knowledge of early case law. Judges formed or moulded the common law, and its growth and character can often be traced to outstanding men like Bracton, Coke, and Littleton. Although judges today may develop the common law within fairly narrow limits, they are mainly concerned with interpreting and applying statute law which is now the main source of legal development.

(d) Independence of judiciary

Justice requires that a judge be impartial and independent of either party to a particular legal dispute. The Act of Settlement, 1701, provided that judges of superior courts 'hold office during good behaviour, that their salaries be ascertained and established, and that they be removed only on the address of both Houses of Parliament.

(e) Independence of lawyers

The two branches of the legal profession comprise barristers and solicitors. Each branch is controlled by an independent body which maintains high professional standards of education, training, and conduct. Lawyers are not appointed by the State and are not civil servants. They are not subject to direct political control, and, like the judges, are traditionally independent. Their relations with clients are based on confidence and protected by privilege; they cannot be compelled to disclose what passes between them during their professional dealings.

(f) Influence of procedure

Procedure has influenced substantive law. We shall see later that at one time the existence of a legal right depended on whether there was a suitable writ with which to begin the action, The writ system governed early law. Such procedural rules affected the law itself and they have left their imprint.

(g) No reception of Roman law

English common law was of native growth and little influenced by Roman Law, unlike the law of Continental countries and Scotland which was shaped by it.

(h) The doctrine of precedent

To achieve some consistency in decisions, the courts developed the practice that the lower courts are bound to follow decisions in higher courts.

(i)Practical nature of the law

It was emphasized by the House of Lords in Ainsbury v. Millington (1987) that it has always been a fundamental feature of the English judicial system that the courts decide disputes between the parties before them. They will not pronounce on abstract questions of law where there is no dispute to be resolved.